Decision reflects “strong message” from court on expert evidence

In a recent decision on the admissibility of expert evidence, the Divisional Court has sent a strong message that it will be standing firm when it comes to the requirements under Rule 53, says Toronto personal injury lawyer Stacey L. Stevens.

In Westerhof v. Gee (Estate), the plaintiff was appealing the decision of the trial judge, who refused to admit evidence from his treating medical and rehabilitation specialists based on the ruling that they did not meet the requirements under Rule 53 of the Rules of Civil Procedure, explains Stevens, partner at Thomson Rogers.

According to the court, Rule 53 sets out that any witness called as an expert is “required to be qualified as to his or her expertise and to produce a report that provides and demonstrates the basis for any opinion to be included in the evidence to be given at trial.”

Stevens says Justice Thomas Lederer acknowledged the existence of a line of cases which held that treating medical and rehabilitation witnesses as well as insurer examination assessors fall into a category of expert witness that are exempt from the requirements under Rule 53. These cases, she says, include McNeill v. Filthaut, Slaight v. Phillips (May 18, 2010, unreported, Court File No. 109/07) and Kusnierz v. Economical Insurance Company.

But, she adds, Lederer rejected these decisions and reverted back to the principles in Beasley v. Barrand; the first decision to deal with the 2010 changes to Rule 53, which include the requirement that experts confirm that they understand their duties by signing an ‘Acknowledgment of Expert’s Duty.’

“Justice Lederer finds there is no basis in Rule 53 upon which a witness may rely upon in order to be exempt from the requirements,” says Stevens.

"The important distinction is not the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with Rule 53.03 is required; if it is factual evidence, it is not,” writes Lederer.

In his reasons, Lederer noted that a diagnosis is not always a fact. “In this case, it is the opinions of the treating professionals that the judge required be supported by reports that complied with rule 53.03. He was correct in doing so.”

But, says Stevens, this does not mean that a witness who does not comply with Rule 53 is barred from giving evidence.

“In those circumstances, the witness will be limited to giving fact evidence and cannot provide opinion evidence relating to the cause of the injury, diagnosis and/or prognosis,” she says.

Ultimately, Stevens explains that the decision has important implications for the personal injury bar.

“Lawyers must carefully review all of the medical records and rehabilitation reports well in advance of a pre-trial to ensure that any opinion evidence contained in the reports is being properly put before the court by a qualified expert who meets all of the requirements of Rule 53,” says Stevens.